These passages from a recent decision of the Fair Work Commission deal with the concept of constructive dismissal in the context of a general protections claim involving an alleged constructive dis missal.
“Appeal grounds 3-7 and 10-15
[56] These appeal grounds all deal with Mr Zahirovic’s contention that the Deputy President applied the wrong legal tests in relation to constructive dismissal. Mr Zahirovic submitted that the following matters indicated that he had been constructively dismissed:
- Bluethumb’s refusal to provide evidence of performance issues; (Appeal Grounds 3 and 12)
- Bluethumb’s removal of Mr Zahirovic’s system access before he provided formal notice or there was a discussion of resignation; and (Appeal Ground 11)
- Bluethumb’s conduct of an exit interview without any attempt to resolve the performance dispute. (Appeal Ground 13)
[57] The following appeal grounds also appear to be relevant to the issue of constructive dismissal:
- The Deputy President overlooked the psychological impact of Bluethumb’s actions, including the fear of future false accusations, which made the work environment untenable. (Appeal Ground 4)
- The Deputy President erred in not recognizing that Bluethumb’s actions, including posting a job advertisement before the performance discussion and rapidly dismissing Mr Zahirovic, indicated a predetermined intention to end the employment. (Appeal Grounds 5 and 10)
- The Deputy President failed to adequately consider Mr Zahirovic’s pre-existing health issues and complaints about work procedures, which were relevant to understanding the context of the situation. (Appeal Ground 6)
- The Deputy President erred in law by failing to consider the principle of procedural fairness in performance management. (Appeal Ground 7)
- The Deputy President overlooked the Chief Financial Officer’s alleged threat to withhold Mr Zahirovic’s salary and other payments, which is relevant to understanding the pressure Mr Zahirovic was under and the hostile work environment. (Appeal Ground 14)
- The Deputy President failed to adequately consider how the employer’s actions created a hostile work environment. (Appeal Ground 15)
[58] The Deputy President commenced his consideration of whether Mr Zahirovic was dismissed by referring to the relevant authorities,66 observing that a finding whether a person was ‘dismissed’ is based on a consideration of the evidence as a whole, including inferences reasonably drawn from the conduct of the parties.67 The Deputy President referred to these principles as summarised in the Federal Court judgement of Rares J in Koutalis v Pollett:68
…it depends upon what a reasonable person in the position of the parties would have understood was the objective position…based on what each party…had said or done, in light of the surrounding circumstances.
[59] In relation to a constructive dismissal, the Deputy President observed that the question for the Commission is whether the employer’s conduct was the “principal contributing factor” which led to the termination such that, had the employer not taken the action it did, the employee would have remained in the employment relationship.69 The Deputy President noted Mr Zahirovic’s submissions were that if he resigned, he was forced to resign by a course of conduct by Bluethumb.70 This included the employer raising unreasonable performance concerns and failing to negotiate a peaceful exit. Conduct at the initiative of Bluethumb included Bluethumb unilaterally withdrawing Mr Zahirovic’s permissions to access its online systems and perform work and its unwillingness to negotiate a peaceful exit in line with his contract.71
[60] The Deputy President found that the case of forced resignation advanced by Mr Zahirovic is weak.72 The Deputy President accepted Mr Gibson’s evidence that the concerns about Mr Zahirovic’s performance were genuinely held, that they were raised in a fair and orderly manner and that there was nothing unorthodox about the steps taken by Bluethumb to raise its concerns in the proper management of its operations.73 The Deputy President found that regardless of whether it was unexpected and uncomfortable for Mr Zahirovic to hear the criticism and whether it was fair or warranted, there is no basis upon which to objectively conclude that the resignation was forced.74 The Deputy President also concluded that it was not unreasonable for Mr Hartley to conduct an exit interview on 4 June to better understand Mr Zahirovic’s reasons for having resigned, and consider whether he would try to change his mind. These findings were open to the Deputy President after considering all of the evidence before him and applying the relevant authorities and as such no arguable appealable error is disclosed.
[61] The Deputy President found that Bluethumb’s actions in revoking Mr Zahirovic’s access was not conduct terminating the employment relationship as by then, there was already a sufficiently clear mutual agreement that the employment relationship would end that day. The Deputy President also found that this was conduct consequential on that mutual understanding. These findings were open to the Deputy President after considering all of the evidence before him and as such no arguable appealable error is disclosed.75
[62] In relation to the exit interview, the Deputy President noted Mr Hartley’s evidence of the meeting with Mr Zahirovic on 4 June 2024.76 Mr Zahirovic explained his reasons for resigning. Mr Hartley did not seek to talk Mr Zahirovic out of this course but agreed to discuss the issue further with his senior colleagues. Mr Hartley then spoke with Mr Gibson and Mr Timofeev about Mr Zahirovic’s employment ending the way it did. Mr Gibson expressed the view that while it was difficult to recruit engineers, and whilst he too was surprised that Mr Zahirovic had resigned rather than work through the issues of concern, it was best to let the resignation stand.77
[63] After considering the evidence, the Deputy President found that it was not unreasonable for Mr Hartley to conduct an exit interview on 4 June 2024 to better understand Mr Zahirovic’s reasons for having resigned, and that the written confirmation sent by Mr Hartley to Mr Zahirovic on 5 June 2024 is best characterised as confirmation of what had already occurred.
As the Deputy President had found that Mr Zahirovic’s resignation took effect prior to this meeting, there was no arguable appealable error disclosed in the conclusions that the Deputy President reached about the meeting on 4 June 2024.
[64] In relation to Bluethumb’s refusal to provide evidence of performance issues, there was no evidence before the Deputy President that Bluethumb intended to take some form of performance management or disciplinary action after raising its concerns with Mr Zahirovic which would warrant considerations of procedural fairness including the provision of any evidence of underperformance or an opportunity for Mr Zahirovic to defend himself. The Deputy President found that Mr Zahirovic did in fact defend himself, as he believed that more objective criteria should be applied to assess his performance and responded with criticism of the Bluethumb coding system.78Accordingly, no arguable appealable error is disclosed.
[65] The remaining Appeal grounds dealing with constructive dismissal can be best described as matters which Mr Zahirovic relies upon to contend that Bluethumb was engaging in a course of conduct, which culminated in Mr Timofeev raising the performance issues which led to Mr Zahirovic’s resignation. As no appealable error is disclosed with respect to the Deputy President’s findings that the resignation was not forced by the raising of the performance issues, we find that it was unnecessary for the Deputy President to consider these matters. Accordingly, no arguable appealable error is disclosed with respect to Appeal Grounds 4-7, 10, 14 and 15.
Conclusion and disposition
[66] We are not persuaded that permission to appeal should be granted. We do not consider that an arguable case has been advanced that the decision of the Deputy President was attended by appealable error.
[67] We have considered whether this appeal attracts the public interest, and we are not satisfied, for the purposes of s.602(2), that the appeal raises any legal or factual issue of significance or general application, there is diversity of decisions at first instance, or that the legal principles applied by the Deputy President are disharmonious when compared with other decisions. Further, we do not consider that the Deputy President’s decision is counter intuitive or manifests an injustice.
[68] We order that permission to appeal is refused. “
Appeal by Zahirovic v Bluethumb Pty. Ltd. [2024] FWCFB 403 delivered 22 October 2024 per Wright DP, Roberts DP and Grayson DP